August 22, 2006

Talk Left notes a news report that says 12% of those who receive the death penalty choose not to appeal and suggests this is rational. Interesting. Back when Gary Gilmore refused to appeal his death sentence, people found it very disturbing that a man wouldn't fight to stay alive. There was an effort to bring an appeal for him, in spite of his refusal, with his mother as the party representing him, as if his refusal to appeal was a sign that he needed someone to stand in for him. The Supreme Court said she didn't have standing.

I wrote a law review article back in 1991 about Gilmore and a later case Whitmore, in which another person given the death sentence tried (unsuccessfully) to represent a murderer who declined to appeal. (The article is not linkable, but here's the cite: Althouse, Standing, in Fluffy Slippers, 77 Va. L. Rev. 1177 (1991).)

Here's a footnote from that article, on this question of whether it's sane to accept the death penalty:

This preference for death over prison is scarcely bizarre. Gilmore's decision, as reported in The Executioner's Song, seemed entirely sane and rational, given his long experience of the reality of prison life. Popular songs have long portrayed a life sentence as worse than execution. See G. Brooks, "Send Me to the 'Lectric Chair" (Mills Music, Inc. 1927) ("Now I don't want no bondsman here agoin' on my bail,/And I don't wanna spend them nine and ninety years in jail;/So judge, judge, good kind judge,/Send me to the 'lectric chair."); M. Haggard & J. Sanders, "Life in Prison" ("I begged they'd sentence me to die/ But they wanted me to live and I know why -- My life will be a burden every day/If I could die, my pain might go away."). And Patrick Henry said, "give me liberty or give me death!" to the 2d Revolutionary Convention in Virginia, March 23, 1775 (cited in 14 Encyclopedia Americana 108 (1986)), a sentiment the state of New Hampshire compels its drivers to bear on their license plates. See Wooley v. Maynard, 430 U.S. 705 (1977) (Court straining the doctrine of Younger v. Harris, 401 U.S. 37 (1971), to bar prosecution of the nonconformist couple who took offense at the slogan "Live Free or Die" and covered it up with tape); see also Cruzan v. Director, Mo. Dep't of Health, 110 S.Ct. 2841, 2885 (1990) (Stevens, J., dissenting) (citing Patrick Henry's quote in recognizing a "right to die"). For futher discussion of the Cruzan case, see infra note 57.

The most widely venerated refusal to fight the death penalty was that of Jesus: "Pilate questioned him again: 'Have you nothing to say in your defense? You see how many charges they are bringing against you.' But, to Pilate's astonishment, Jesus made no further reply." Mark 15:4-5. Like Gilmore, Jesus withdrew from the process the law afforded him and accepted execution. Why has Jesus' choice inspired reverence and Gilmore's scorn? Gilmore turned his back on a legal system we still support and view as a source of justice; Jesus turned his back on a legal process we consider corrupt and evil. Perhaps it is not that we despise the acceptance of death, but that we judge an expression of contempt of the legal system in accordance with our opinion of that system.

Socrates is also famous for accepting the death penalty. See Plato, Crito, reprinted in Plato, The Last Days of Socrates 53-70 (H. Tredennick trans. 1954). Unlike Gilmore and Jesus, however, Socrates did not refuse any available step in the legal process. He refused the extralegal step of escape and argued against violating the law in a legal system that had wronged him. Thus, he expressed the very antithesis of contempt for the legal system.

The most obvious explanation for the scorn directed at Gilmore is simply that in judging him, we cannot separate his preference for death from the fact that he was a murderer, just as we cannot separate our judgment of Jesus and Socrates from our knowledge that they committed no offense we can remotely understand as punishable by death. Whereas Jesus and Socrates were great men we would never have condemned, Gilmore was a social excrescence whose demise relieves us (judgment takes place in context, not in the abstract). Or perhaps, at least for those who support the death penalty, scorn for Gilmore's choice expresses frustration that he somehow destroyed the state's power to punish. Someone who prefers death will only be killed by execution -- not punished. Gilmore is incomparable with Jesus and Socrates for any number of reasons, but among those reasons is that only Gilmore deprived us of whatever satisfaction attaches to social vengeance.

It was hard to go through with writing a law review footnote like that, and this was an article full of unusual touches. The nice thing is that if you do write something strange and a law journal accepts it, they're not going to try to edit you into the form of the standard law review article. I wrote about that phenomenon in a little article called "Who's to Blame for Law Reviews?" And I maintain a very high opinion of the Virginia Law Review editors who accepted the "Fluffy Slippers" article -- which is full of evidence that I was dying to blog -- and who gave it such a sympathetic edit.

But back to the death penalty, what do you think of those who don't appeal? I assume these are all people who have only the hope of life in prison and who do not have a chance of going free, that is who would only be challenging the sentence not the finding that they were guilty of the crime.

Here in Wisconsin, we don't have the death penalty and haven't for over a century, but we'll be voting on the death penalty this fall. A new poll shows 54% of likely voters favor it, over 39% opposed. Check out the new "No Death Penalty" website, which is working against the Wisconsin referendum.

The article is not linkable, but here's the cite: Althouse, Standing, in Fluffy Slippers, 77 Va. L. Rev. 1177 (1991).

With Althouse, it's all about the fashion choices!

The real question is: Does Althouse approve of fluffy slippers, or are they on the verbotten list along with shorts? Perhaps she was arguing the appropriateness of the death penalty as a punishment for truly egregious fashion crimes.

I once represented a death row inmate who wished not to appeal. He had previously pled guilty to a capital crime and expressly waived his appellate rights. The state forced an appeal, and the Cal. Supreme Court reversed on the ground that his lawyer didn't consent to the plea. He then was tried before a jury and convicted, and again sentenced to death. The Supreme Court affirmed, rejecting our argument that the trial was barred by the double jeopardy clause,on the theory that jeopardy never attached at the time of the guilty plea, despite that the plea was accepted, a penalty trial was conducted, and he was sentenced to death. See People v. Massie, 19 Cal.4th 550 (1998). When he waived federal review, without my oppositon, "friends" sought, unsuccessfully, to have me removed as counsel so that others could seek a declaration of incompetence in order to pursue federal appeals against the client's wishes (he was a very intelligent, thoughtful, and sane man). See Massie v. Woodford, 244 F.3d 1192 (9th Cir. 2001). In the weeks leading up to his execution, I was castigated by the establishment death penalty defense bar (I am a civil appellate attorney, and took the case pro bono at the request of the Supreme Court) for not ignoring my client's wishes, seeking to have him declared incompetent, and pursuing all available appellate remedies despite my client's clear desire to end the matter. "Tool of the prosecution" was one of the more pleasant things I was called. I have no doubt we did the right thing, but I wouldn't wish the experience on anyone.

I don't think about them much at all, and don't have any burning interest to understand whatever motivates their choices. That they intentionally chose to participate in one or more murders, with some special aggravating factor to boot -- that's basically the only "death eligible" crime under current SCOTUS death penalty jurisprudence -- means that these characters have a very different makeup from normal people. No "one size fits all" explanation is possible.

The commenters on this string are all trying to suggest rational motives for the choices made by these death row inmates who decide not to appeal -- some imagined desire for finality, a yearning to be free that can never be satisfied, something else. These explanations all romanticize the death row inmate in a way that seems to me to be very dubious. Perhaps those explanations might fit some subset of death row inmates. But for most, I suspect that "normal" and "rational" aren't descriptions that will ever apply to them.

That's also the reason why so many of the examples in your Va Law Review footnote have such an odd, out of context quality here. It's certainly true that many admirable and upstanding historical characters have chosen to accept death rather than some other path deemed less honorable. But there's a real disconnect in trying to explain the reasoning or moral calculations of a death row inmate by use of those examples. And the citation to the New Testament really falls flat -- without the crucifixion, there could have been no resurrection, and thus no point to the incarnation. To what subset of death row inmates might that experience apply?

Don S said..."Only by accident, and after the utmost efforts of all involved to prevent it."

What was the accident, and what is your understanding of the term "all involved"? Glib little comments don't really help further the discussion, and they don't even make a point, so if you're going to clutter up the page, at least clutter it by actually expressing an opinion rather than meaningless verbiage masquerading as droll disinterest.

Explanation for the "fluffy slippers" title, from the text of the article:

"The Executioner's Song has a thousand pages of facts without conclusions. The circles of people around Gary Gilmore radiate out with a maddening lack of boundary. Their connections to him are sometimes intense, sometimes remote. The Supreme Court case pops up at one brief point, just to say that Bessie Gilmore, the condemned man's mother, could not apply for a stay of execution. Mailer does not show us the Supreme Court's opinion (which is also minimal). He shows us what ordinary people see when they find out about a Supreme Court case -- the local newspaper:

'Deseret News

'No More Delays Gilmore Says

'Salt Lake, Dec. 13th -- In an order Monday, the U.S. Supreme Court ruled that Gary Mark Gilmore had made a knowing and intelligent waiver of his rights.

'On hearing the decision, Gilmore ended a 25 day hunger strike.'

"The law is notable for its distance and its extreme smallness in relation to everything else in the story. The Supreme Court seems like an obtuse and ineffectual interloper, an abstract mind rendered stupid by the complete absence of context. On the facing page, the book tells you that visitors had brought Bessie Gilmore a red shawl and "fluffy house slippers to keep her feet warm." They had forgotten to talk about the Supreme Court case. These trivial facts seem to symbolize the vast separation between people and the Court. How separate are the reality of the actors in the underlying event and the reality of the law: Bessie with her feet kept warm in slippers (a particular kind of slippers) and Bessie with no 'standing' to seek a stay. Perhaps the participants sensed that more relief would come from warm clothing than from the Court."

Smilin' Jack - How do you figure that "Gilmore deprived us of whatever satisfaction attaches to social vengeance"? He was found guilty; he was sentenced to death; he was executed. Where do you see some sort of perverse triumph for Gilmore in that? The only thing he deprived anyone of was the LDF's de facto moratorium on the death penalty.

Patrick Henry was a Virginian. The slogan "Live free or die" on the New Hampshire license plates is attributed to John Stark, who was a New Hampshirite.

As far as the death penalty is concerned,

Keep in mind that the twelve states without it (Wisconsin being one of those) have on average a lower rate of murder than the states with it. Even demographically similar states, such as Illinois (which has the death penalty) and Michigan (which does not), when compared show that the state with the death penalty is nearly always higher in terms of its murder rate.

Why is this? Well, the answer can be seen in what has happened in Russia. There, the death penalty was given for even the smallest of offenses under the communist rule, and the obvious disregard for human life on the part of the state led people to feel the same way. Hence when they were 'free' the first thing they did was go on an unprecedented crime spree, and are still shooting, stabbing and blowing each other up at a much higher rate than any other industrialized country except of course for the United States.

I believe that if the state supercedes God in determining who lives and who dies and on what day they die, then the state becomes the arbiter of ethics and morality on the subject. Hence we become only as moral as the state. And this explains why there are more murders in death penalty states. Life is cheaper where men are employed by the state to kill prisoners.

Socrates believed in an afterlife, but he was willing to entertain the idea he was wrong even to the last discussion, as I remember. So his committment to death was not based on his certainty of reward in the afterlife, but in his view of the rightness or wrongness of the decision itself.

Couldn't declining an appeal be a psychological way of saying "f*ck you?" Like Will in Good Will Hunting given the choice of being beaten with a belt, a stick, or a wrench, choosing the wrench. It isn't an ethical action, but an interpersonal one.

Eli Blake said..."Keep in mind that the twelve states without it (Wisconsin being one of those) have on average a lower rate of murder than the states with it."

That is only a damning indictment if one believes that the sole purpose of capital punishment is deterrence rather than what its name would imply: punishment. If the punishment serves as a deterrent too, then that's so much the better, but that isn't its primary function. As I explained in January, I do support an immediate moratorium on the death penalty, and a fortiori, I oppose its introduction in Wisconsin.